The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Plaintiff Paul Boushie commenced this action in the New York State Supreme County, St. Lawrence County, against his former employer, U.S. Investigations Service, LLC, and the employer's District Manager, Karen Goniea. See Compl. attached to Def. Not. of Removal [dkt. # 1]. Plaintiff asserts three causes of action in the Complaint. The First Cause of Action asserts claims of state law defamation based on five separate defamatory statements. Id. The Second Cause of Action asserts a general claim of age discrimination (i.e., Plaintiff does not identify the statute under which the Second of Action is brought). Id. The Third Cause of Action asserts a claim of age discrimination under New York Executive Law Section 296. Id. Defendants removed the action to this Court based upon diversity jurisdiction. See Not. of Removal.
Defendants move to dismiss the action pursuant to FED. R. CIV. P. 12(b)(6) on the grounds that the three Causes of Action fail to state a claim upon which relief may be granted. Plaintiff cross-moves pursuant to FED. R. CIV. P. 15(a) for leave to file an amended complaint. Plaintiff's proposed Amended Complaint withdraws the original Second Cause of Action, but retains the First Cause of Action for defamation and the Third Cause of Action for age discrimination under New York Executive Law Section 296 (which is now captioned as the Second Cause of Action). Defendants oppose the cross-motion asserting that amendment would be futile because the proposed Amended Complaint fails to cure the deficiencies in the original Complaint.
a. Amendment of Complaint Under Rule 15(a)
Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend "shall be freely given when justice so requires." Leave is not, however, automatic, and may be denied for good cause "such as . . . futility of amendment." Foman v. Davis, 371 U.S. 178, 182 (1962). "An amendment is considered futile if the amended pleading fails to state a claim or would be subject to a successful motion to dismiss on some other basis." Lamb v. Henderson, 1999 WL 516271, at *2 (S.D.N.Y. Aug. 9, 1999)(citing S.S. Silberblatt, Inc. v. East Harlem Pilot Block, 608 F.2d 28, 42 (2d Cir. 1979)). A court, therefore, is justified in denying an amendment that could not withstand a motion to dismiss. Id. (internal citations omitted); see also Ruffolo v. Openheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993)(where granting leave to amend is unlikely to be productive it is not an abuse of discretion to deny leave to amend).
Since Plaintiff professes to cure any asserted deficiencies contained in the original Complaint by way of the proposed Amended Complaint, the allegations of the proposed Amended Complaint will be tested against the Rule 12(b)(6) standard.
b. Motion to Dismiss Under Rule 12(b)(6)
A motion under FED. R. CIV. P. 12(b)(6) tests the legal sufficiency of the claims pleaded in the complaint. As the Supreme Court has held, "a complaint must only include 'a short and plain statement of the claim showing that the pleader is entitled to relief.'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002)(quoting FED. R. CIV. P. 8(a)).
"Such a statement must simply 'give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Id. (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "This simplified notice pleading relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims." Id. Thus, a complaint is sufficient if it gives the defendant fair notice of the plaintiff's claims, the grounds upon which they rest, and states claims upon which relief could be granted. Id. at 514.
On a Rule 12(b)(6) motion, the Court accepts as true all factual allegations in the complaint. See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993). "Further, the court should construe the complaint liberally and draw inferences from the plaintiff's allegations in the light most favorable to the plaintiff." Tomayo v. City of N.Y., 2004 WL 137198, at * 5 (S.D.N.Y. Jan. 27, 2004)(citing Desiderio v. National Ass'n of Sec. Dealers, Inc., 191 F.3d 198, 202 (2d Cir. 1999)). The complaint must allege sufficient facts that would make the pleaded legal theories plausible. See Twombly v. Bell Atlantic Corp., 425 F.3d 99, 111 (2d Cir. 2005). However, 'sweeping legal conclusions cast in the form of factual allegations' do not suffice to state a claim even at the Rule 12(b)(6) stage. 5A Charles Alan Wright et al., FEDERAL PRACTICE AND PROCEDURE § 1357 (2d ed. 1990). 'While the pleading standard is a liberal one, bald assertions and conclusions of law will not suffice.'
Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996); Law Offices of Curtis V. Trinko, L.L.P. v. Bell Atlantic Corp., 309 F.3d 71, 74 (2d Cir. 2002).
In deciding a Rule 12(b)(6) motion, review "is generally limited to the facts and allegations that are contained in the complaint and in any documents that are either incorporated into the complaint by reference or attached to the complaint as exhibits." Blue Tree Hotels Inv., Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004)(citations omitted). Dismissal is appropriate only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," Phillip v. Univ. of Rochester, 316 ...